Anyone charged with a crime in America is entitled “to have the Assistance of Counsel for his defence.”[i] Our brief American history is riddled with anecdotes of citizens being tried and convicted without an attorney; the right to an attorney in a criminal prosecution has not always been the case. Looking at our history, the American colonists were subjected to harsh and nasty summary justice by the agents of Crown. These British officers were swift in meeting out injustice. Without any counsel to defend the accused, the accused was universally convicted and punished.
After the new constitution was ratified by the several states, the new Americans, remembering their treatment in this regard by the British officers, wanted some guarantees that the newly formed government would not be able to mistreat its citizens in criminal prosecutions in the same fashion as the Crown did years before. Thus, the Sixth Amendment (as well as the rest of the Bill of Rights) came into being and was ratified by the several states. Ultimately, this constant government injustice sparked a legal revolution that culminated with this new protective framework- – individual rights retained by the citizens.
How does the right to counsel work in this regard? If an accused is guaranteed “to have the Assistance of Counsel for [their] defence,” what happens if the attorney representing the accused makes a mistake?[ii] Does the mistake have to be significant? Or can it be trival? Does the mistake have to affect the outcome of the trial? What if the mistake had no objective affect on the outcome of the trial, but was simply silly and embarassing?
For over 40 years, the Supreme Court has wrestled with the question what mistakes by counsel might constitute “ineffective assistance” of counsel. Several different legal standards to evaluate an “ineffective assistance” of counsel claim developed around the country over the years as the various courts struggled to make sense of the right. In 1984, the Supreme Court, in a case titled Strickland v. Washington,[iii] provided the current legal standard to evaluate whether counsel’s mistake during the entire trial process constitutes “ineffective assistance” of counsel. And, if it does constitute “ineffective assistance,” then did counsel’s mistake vitiate, spoil, or so impair the accused’s right to a fair trial as to render the right null and void under the Sixth Amendment. Over time, the Sixth Amendment has come to stand, amongst other things, the right to a fair trial.[iv]
The Strickland Court established a two-part test for evaluating an ineffective assistance of counsel claim and a convicted, criminal defendant must show two things: (1) counsel’s performance fell below an objective standard of reasonableness (in that counsel’s performance was “deficient,” such that counsel’s error or errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”); and (2) counsel’s “deficient” performance gives rise to a reasonable probability that if counsel had performed adequately, the result would have been different. In other words, counsel’s deficient performance must be so serious that it deprived this defendant of a fair trial.
The Strickland Court explained:
The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction … has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense … [T]he proper standard for attorney performance is of reasonably effective assistance.[v]
The Court was attempting to synthesize the various standards adopted by the different circuit courts. In the end, the Court announced this as the standard for determining ineffective assistance of counsel after a defendant has been found guilty at trial.[vi]
The deficient performance prong of the test seems pretty straight forward. The case law prohibits Monday morning quarterbacking the case and second-guessing various decisions by counsel. The Florida Supreme Court takes the position that:
Counsel cannot be deemed ineffective merely because current counsel disagrees with trial counsel’s strategic decisions. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052 (“A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight….”); Cherry v. State, 659 So.2d 1069, 1073 (Fla.1995) (“The standard is not how present counsel would have proceeded, in hindsight….”). Moreover, strategic decisions do not constitute ineffective assistance of counsel if alternative courses have been considered and rejected and counsel’s decision was reasonable under the norms of professional conduct. See Rutherford [v. State], 727 So.2d [216 (Fla. 1998)] at 223; State v. Bolender, 503 So.2d 1247, 1250 (Fla.1987).[vii] (Emphasis added).
Objectively, the review looks at the decision-making process to evaluate if the process was sound and does not simply review what the outcome might have been (i.e., what is referred to in other academic disciplines as resulting). If the process was sound, but the outcome poor, then it is highly unlikely that attorney’s performance would be deemed deficient; on the other hand, if the process was flawed because the attorney failed to recognize any alternatives and the decision was unreasonable, then the attorney’s performance might be considered “deficient.”
If the first prong is not established, the second prong regarding prejudice becomes irrelevant. Regarding “prejudice,” the Florida Supreme Court explained that when reviewing a claim of “ineffective assistance” of counsel, that the convicted defendant must prove prejudice affirmatively.[viii] When courts use the term “affirmatively,” the court means that the convicted, criminal defendant must conclusively demonstrate that he or she was prejudiced by counsel’s deficient performance. In other words, the convicted, criminal defendant must show something that did not happen (either an acquittal or conviction on a lessor charge) would have happened “but for” counsel’s deficient performance.[ix] This is next to impossible and is the reason that many reasonable and/or debatable “ineffective assistance” of counsel claims are denied.
Although the concept of “effective assistance of counsel” is easy enough to for anyone to grasp and understand, the actual application of the Strickland standard its evolving case law to any specific case can become both infuriating and mind numbing. The review process requires an attorney with expertise in the following areas: trial, appeals, and the post-conviction case law. The reviewer needs adequate time to comb through the record to carefully review the case to determine if there are any viable issues for review. Keep in mind, the reviewer must have sufficient trial and appellate experience to spot these types of issues. Inexperienced attorneys are what caused the problem in the first place. The mistake could be something as simple as not objecting properly at trial, or neglecting to interview and/or call a witness at trial, or failing to recognize an improper closing argument…etc.
This type of legal review is not an easy process and should not be undertaken lightly. As a cusory analysis has shown, there are many people in prison around this country that were denied “effective assistance” of counsel, but many of these defendants took it upon themselves to assess and diagnose their own cases for whatever reason. Self-representation is always a bad idea. A wise judge explained it this way in his court – – Mr. Accused, “If your appendix burst, would you operate on yourself?” The question scarcely escapes its own statement.
The point is obvious. Just like self-medical diagnosis is never a good idea, only a trained criminal defense attorney, a professional, with the proper background, experience, and skill in constitutional law, evidence, criminal law, and trial and appellate procedure should be reviewing and analyzing these types of ineffective assistance of counsel cases for the specific constitutional problems to best assist these defendants.
Over the coming months, the Trial Dog that will attempt to further explain what may or may not constitute “ineffective assistance” of counsel through different examples. If you believe that you or a loved one has been denied of “effective assistance” of counsel, please contact my firm at (813) 417-3645 for a review of your case or go to www.candelalawfirm.com for more information on how to contact us.
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm
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[i] The Sixth Amendment reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.” (1789). The protections guaranteed by the Sixth Amendment deals exclusively with aspects of a criminal prosecution. Many of these rights that we take for granted today were not always afforded our ancestors at or before the ratification of the constitution.
[ii] Justice Antonin Scalia on what constitutes ‘ineffective assistance of counsel’ in an oral argument. Justice Scalia: “Well, now, wait a minute. I – – you know, I have – – we – – don’t evaluate whether you had a good counsel or bad counsel. You may have Clarence Darrow and still be denied effective assistance of counsel if Clarence Darrow makes one mistake. I mean, when – – when we find that there has been ineffective assistance of counsel, I think that means counsel failed to do one thing that he should have done. But there’s – – there’s no such general finding that counsel was – – was, in gross, ineffective. You’re – – you’re – – you’re describing it as though – – as though that’s what the finding is. That – – that’s not what we hold when we find this particular counsel made this mistake. That’s it.” Jennings v. Stephens, 13-7211, transcript of oral argument, 15 October 2014, (Pg. 4, L. 20-25, Pg. 5, L. 1-9) and “No, no, no, no. The – – the right to a trial that did not have this – – this failure of counsel, this particular failure. You’re not entitled to – – to competent counsel. You’re – you’re entitled to counsel who doesn’t make a mistake. He could be the dumbest counsel around so long as he doesn’t make a mistake. And he could be the smartest around, and if he does make a mistake, that’s ineffective assistance of counsel,” Jennings v. Stephens, 13-7211, transcript of oral argument, 15 October 2014, (Pg. 11, L. 24-25, Pg. 12, L.1-7).
[iii] Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The case comes out of Florida. Justice O’Conner delivered the majority opinion; Justice Thurgood Marshall dissented. In his dissent, he foresaw that this standard would end up being useless to evaluate whether or not a defense attorney’s performance was reasonable (and he was not wrong in this author’s humble opinion).
[iv] Interestingly enough, the Supreme Court settled on a judge supervised, non-jury system to determine if the criminal defense attorney has provided “ineffective assistance of counsel.” This is remarkably different from the jury system typically employed for all other types of professional malpractice which includes legal malpractice.
[v] Strickland, 466 U.S. 668, 686-687 (1984).
[vi] Again, it seems strange that a simple negligence standard was not settled on with a jury deciding if the attorney fell below the acceptable standard and that the mistake effected the outcome of the case.
[vii] Occhicone v. State, 768 So. 2d 1037, 1048-9 (Fla. 2000),
[viii] Downs v. State, 453 So. 2d 1102 (Fla. 1984)
[ix] See also Harrington v. Richter, 561 U.S. 86, 112-3, 131 S.Ct 770, 178 L.Ed.2d 624 (2011) (“In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. (citation omitted) Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been different. (citation omitted) This does not require a showing that counsel’s actions ‘more likely than not altered the outcome,’ but the difference between Strickland’s prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’ (citation omitted) The likelihood of a different result must be substantial, not just conceivable.”)